Johnson v. Norris
RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Brandon Johnson's Petition for Writ of Habeas Corpus, with prejudice. Objections to R&R due no later than 14 days from the date you receive the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 1/13/10. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION B R A N D O N JOHNSON A D C # 139905 V S. NO. 5:09-CV-00035-SWW-BD PETITIONER
L A R R Y NORRIS, Director, A r k a n s a s Department of Correction
R ESPON D EN T
R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact.
Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground O n July 24, 2006, Petitioner Brandon Johnson pled guilty in the Circuit Court of W a s h in g to n County, Arkansas, to terroristic threatening and third degree domestic b a tte ry. Johnson v. State, No. CACR 08-9, 2008 WL 244167 at *1 (June 18, 2008). The c o u rt sentenced Petitioner to forty-eight months' probation. Id. In March 2007, officers arrested Petitioner on new charges of terroristic th re a te n in g , fleeing, and resisting arrest. In May of 2007, Petitioner pled guilty to the c h a rg e s for which he was arrested in March. Id. O n April 19, 2007, the Washington County Prosecutor petitioned to revoke P e titio n e r's probation based upon the March arrest and other alleged violations of his c o n d itio n s of probation. On September 14, 2007, three days before Petitioner's scheduled re v o c a tio n hearing, the Prosecutor filed an amended petition to revoke, adding battery and v a n d a lis m allegations arising from an alleged beating of a fellow prisoner in the local jail a s well as an allegation Petitioner had failed a drug screen. Id. A t the revocation hearing on September 17, 2007, Petitioner complained to the c o u rt that he was displeased with his counsel and wanted different counsel. After the c o u rt denied his motion for new counsel, Petitioner asked for a continuance to allow him 2
time to confer with his counsel and prepare for the revocation hearing. The court denied h is request for a continuance but allowed Petitioner some time to confer with his counsel. Id. D u rin g the recess, the Prosecutor and Petitioner's counsel realized that in plea n e g o tia tio n s they had assumed in error that the underlying domestic-battery charge was a f e lo n y when it, in fact, was a misdemeanor. The Prosecutor then extended a new plea o f f e r to Petitioner. Id. When court resumed, Petitioner's counsel requested a continuance o f a day for his client to consider the offer. Id. at *2. The court denied the request b e c a u s e witnesses had been subpoenaed and the case had been set for a considerable p e rio d of time. The court agreed, however, to another recess and granted Petitioner p e rm iss io n to call his mother to discuss the plea offer. Id. W h e n court resumed, Petitioner expressed an intent to accept the plea offer but d u rin g the change-of-plea hearing, he again asked the court for two more days to discuss th e new plea offer with his counsel. Id. The court denied the request and proceeded with th e revocation hearing. A f te r hearing the testimony at the revocation hearing, including Petitioner's te s tim o n y in his own defense, the court revoked Petitioner's probated sentence. At a later s e n te n c in g hearing, the court sentenced Petitioner to twelve months of imprisonment in th e Washington County Detention Center for the domestic battery conviction, and six
years in the Arkansas Department of Correction, with three suspended, for the terroristic th re a te n in g conviction. Id. at *3. Petitioner appealed to the Arkansas Court of Appeals. Johnson, 2008 WL 244167 a t *1. Petitioner's sole point on appeal was that the trial court abused its discretion in d e n yin g his request for a continuance on the day of the revocation hearing. Id. at *1. Citing Arkansas Rule of Criminal Procedure 27.3, the Court of Appeals found that, b e c a u s e Petitioner's counsel was prepared for the revocation hearing and witnesses were p re s e n t to testify pursuant to subpoena, the trial court did not abuse its discretion in d e n yin g Petitioner's request for a continuance. Id. Petitioner brings the following claims in this petition for writ of habeas corpus u n d e r 28 U.S.C. § 2254: (1) actual innocence because of insufficient evidence to e s ta b lis h any inexcusable violation of his term of probation; (2) the trial court abused its d is c re tio n by denying his request for a continuance after the nature and degree of the o f f e n s e was changed; (3) denial of the right to effective assistance of trial counsel; and (4) prosecutorial misconduct for unconstitutionally failing to disclose evidence f a v o ra b le to the defense. R e sp o n d e n t argues that the first three claims are procedurally defaulted because P e titio n e r failed to exhaust the claims with the state courts. Respondent also argues that Petitioner's second claim was correctly decided by the Arkansas Court of Appeals. For
the reasons set forth below, the Court recommends that the District Court dismiss all of P e titio n e r's claims. III. A. D is c u s s io n F a ilu r e to Grant Continuance Claim In his petition, Petitioner claims the trial court erred in denying his request for a c o n tin u a n c e , "once the nature and degree as to offense was changed." This is the same claim Petitioner raised through a complete round of the state's appellate review process. F e d e ra l habeas relief is available only on the ground that a person is in custody "in v io la tio n of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. P e titio n e r does not allege that the trial court's denial of his request for a continuance was a violation of federal or constitutional law. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S .C t. 1347, 1349 (2004) (requiring that prisoners "fairly present" the federal nature of th e ir claims in each appropriate state court) (citations omitted). On direct appeal of his conviction, Petitioner cited only the Arkansas Rules of C rim in a l Procedure, Arkansas statutory and case law to support his claim. Consequently, th e state courts did not consider whether the trial court had violated any federal c o n s titu tio n a l or statutory rights by denying a continuance. Instead, the Court analyzed P e titio n e r's claim solely on the basis of the applicable Arkansas Rule of Criminal P ro c e d u re , applying the State's abuse-of-discretion standard. Johnson 2008 WL 2441367 a t *3.
In this petition, Petitioner does not cite to any provision of the United States C o n s titu tio n or any federal law to support his claim. As part of his claim, Petitioner states th e trial court violated Article 2, section 10 of the Arkansas Constitution by giving him o n ly a brief time to decide whether to take the Prosecutor's new plea offer. (#2 at p. 7) This claim, however, does not allege a violation of the United States Constitution or f e d e ra l law in order to be cognizable under 28 U.S.C. § 2254.1 A s the United States Supreme Court stated, "[I]t is not the province of a federal h a b e a s court to reexamine state court determinations on state law questions. In c o n d u c tin g habeas review, a federal court is limited to deciding whether a conviction v io la te d the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U .S . 62, 68-69, 112 S.Ct. 475, 480 (1991). Because state law governs the claim P e titio n e r raises in his petition, this Court is bound by the Arkansas Court of Appeals' ru lin g on that issue. Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992) (citing C a r ls o n v. State, 945 F.2d 1026, 1029 (8th Cir. 1991)). B. P ro c e d u r a l Default B e f o re seeking federal habeas review, a state prisoner must first fairly present the s u b s ta n c e of each claim to each appropriate state court, thereby alerting those courts to
P e titio n e r did not argue a violation of the Arkansas Constitution at trial or on d ire c t appeal. The claim, therefore, is procedurally defaulted unless he can establish c a u s e for his default and prejudice. 6
the federal nature of his claims and giving them an opportunity to pass upon and correct a n y constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29 (2004); see 28 U.S.C. § 2254(b) and (c). "To be fairly presented `a petitioner is required to refer to a specific f e d e ra l constitutional right, a particular constitutional provision, a federal constitutional c a s e , or a state case raising a pertinent federal constitutional issue. Presenting a claim th a t is merely similar to the federal habeas claim is not sufficient to satisfy the fairly p re s e n te d requirement.'" Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005) (quoting B a rr e tt v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 1999)). In other words, "a federal h a b e a s petitioner's claims must rely on the same factual and legal bases relied on in state c o u rt." Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (citing Winfield v. Roper, 4 6 0 F.3d 1026, 1034 (8th Cir. 2006); Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2 0 0 5 )). Claims in a federal habeas petition not presented in the state court proceedings and f o r which there is no remaining state court remedy are defaulted, and a habeas petitioner's d e f a u lt will be excused only if he can "demonstrate cause for the default and actual p re ju d ic e as a result of the alleged violation of federal law, or demonstrate that failure to c o n s id e r the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). If no cause has been shown, th e prejudice element need not be addressed. McCleskey v. Zant, 499 U.S. 467, 502 (1 9 9 1 ).
In his petition, Petitioner claims he is actually innocent because there was in s u f f ic ie n t evidence presented at the revocation hearing to establish a violation of the c o n d itio n s of his probation. (#2 at 5) As Respondent points out, Petitioner did not raise a sufficiency of the evidence claim with the trial court or in his direct appeal to the A rk a n sa s Court of Appeals. Accordingly, Petitioner's sufficiency of the evidence claim f a ils unless he can establish cause for the default and actual prejudice. Petitioner also claims ineffective assistance of his trial counsel. Petitioner, h o w e v e r, never brought a petition in the trial court under Arkansas Rule of Criminal P ro c e d u re 37 raising this claims. Consequently, this claim is also procedurally defaulted u n le s s Petitioner can establish cause for the default and actual prejudice. F in a lly, Petitioner claims prosecutorial misconduct because of, "the failure of the p ro s e c u to r to disclose favorable evidence." (#2 at p. 10) Again, this claim was never ra ise d in the state courts and is procedurally defaulted unless Petitioner can establish " c a u s e for the default and actual prejudice as a result of the alleged violation of federal la w , or demonstrate that failure to consider the claims will result in a fundamental m isc a rria g e of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. C. C a u s e and Prejudice C a u s e for a procedural default is established when "some objective factor external to the defense impede[s] . . . efforts to comply with the State's procedural rule." Murray v . Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639 (1986). As cause for his default, Petitioner
claims he "had no knowledge of a (post-conviction) remedy." (#2 at p. 4) Ignorance of th e law does not, however, constitute cause for default. See Williams v. Lockhart, 873 F .2 d 1129, 1130 (8th Cir. 1989), cert. denied, 493 U.S. 942 (1989). Petitioner also claims that his trial counsel failed to inform him of a postc o n v ic tio n remedy. In proceedings in which the Sixth Amendment requires legal re p re se n ta tio n , ineffective assistance of counsel can be cause for a procedural default. Murray, 477 U.S. at 488. A defendant is not, however, constitutionally entitled to e f f e c tiv e assistance of counsel in state post-conviction proceedings. See Coleman, 501 U .S . at 752. Consequently, post-conviction advice Petitioner received from his attorney o r actions taken or not taken by his attorney cannot constitute cause for a procedural d e f a u lt. See Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (citing Nolan v. A rm a n tr o u t, 973 F.2d 615, 617 (8th Cir. 1992)). Further, a claim of ineffective assistance must be presented to the state courts as an in d e p e n d e n t claim before it may be used to establish cause for a procedural default. B e a u lie u v. Minnesota, 583 F.3d 570, 575 (8th Cir. 2009) (quoting Taylor v. Bowersox, 3 2 9 F.3d 963, 971 (8th Cir. 2003)). In this case, Petitioner did not file a Rule 37 petition w ith the trial court alleging ineffective assistance of counsel. Accordingly, ineffective a s s is ta n c e of counsel cannot be cause for Petitioner's procedural default. Because Petitioner has not established cause for his default, the Court will not a d d re s s prejudice.
M isc a r r ia g e of Justice P e titio n e r also may overcome procedural default by showing that failure to hear his
p e titio n would result in a miscarriage of justice. To establish a miscarriage of justice, a p e titio n e r must show that, based on new evidence, a constitutional violation has resulted in the conviction of someone who is actually innocent. Cagel v. Norris, 474 F.3d 1090, 1 0 9 9 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851 (1995)). This exception is concerned only with claims of actual innocence, not legal innocence. Id. A claim of actual innocence requires that petitioner "support his allegation of c o n s titu tio n a l error with new reliable evidence. . . ." Id. (quoting Schlup v. Delo, 513 U .S . 298, 324, 115 S.Ct. 851, 865 (1995)). Actual innocence may be established by a c re d ib le declaration of guilt by another, a trustworthy eyewitness account, or exculpatory s c ie n tif ic evidence. Id. Petitioner claims "actual innocence," but this claim is based on insufficiency of the evidence supporting his conviction. Petitioner's argument relates to legal innocence, not a c tu a l innocence. Further, Petitioner has not come forward with any new evidence of a c tu a l innocence. Thus, his petition should be denied. IV. C o n c lu s io n P e titio n e r defaulted his constitutional claims by failing to raise them in the state c o u rt post-conviction and appellate processes. See Baldwin v. Reese, 541 U.S. 27, 29, 1 2 4 S.Ct. 1347, 1349 (2004) (requiring that prisoners "fairly present" the federal nature of
their claims in each appropriate state court) (citations omitted). Accordingly, the Court re c o m m e n d s that the District Court dismiss Brandon Johnson's petition for writ of habeas c o rp u s , with prejudice. D A T E D this 13th day of January, 2010.
____________________________________ UNITED STATES MAGISTRATE JUDGE
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